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. e du/thir dc ir c uit_1998/5Filed January 9, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 97-5568

DONALD BURNS,

Appellant

v.

WILLIS E. MORTON, SUPERINTENDENT; PETER VERNIERO, THE ATTORNEY GENERAL OF THE

STATE OF NEW JERSEY

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 97-cv-02507)

Submitted by the Clerk pursuant to I.O.P. Ch. 10.6 October 9, 1997

Before: BECKER, NYGAARD, and ROTH, Circuit Judges. (MOTIONS PANEL A)

(Filed January 9, 1998)

DONALD BURNS #210090 Trenton State Prison, CN 861 Trenton, NJ 08625

Pro seJENNIFER L. GOTTSCHALK

Office of Attorney General of New Jersey Richard J. Hughes Justice Complex Trenton, NJ 08625

Counsel for Appellees

OPINION OF THE COURT

NYGAARD, Circuit Judge.

The district court dismissed Donald Burns' petition for a writ of habeas corpus as untimely under 28 U.S.C. S 2244(d)(1), and granted a certificate of appealab ility to appeal from this dismissal. We conclude that Burns' petition was timely filed under the principles set forth in Houston v. Lack, 487 U.S. 266 (1988). We will summa rily reverse the dismissal, and remand the cause to the district

court.

I.

Burns pleaded guilty in New Jersey Superior Court, Law Division, to multiple counts of robbery, aggravated assault, unlawful possession of a weapon, and conspiracy. On September 10, 1987, Burns was sentenced to 100 year s in prison with fifty years of parole ineligibility. Th e Appellate Division modified his sentence to forty years with a twentyyear period of parole ineligibility. The New Jersey Supreme Court denied Burns' petition for certification.

Burns then filed a petition for post-conviction rel ief in state court, which denied relief. After extensive p ostconviction proceedings, the New Jersey Supreme Cour t denied his petition for certification on September 21, 1995.

On April 22, 1997, Burns submitted his petition for a writ of habeas corpus under 28 U.S.C. S 2254, to of ficials at the New Jersey State Prison to be mailed to the Fed eral District Court for the District of New Jersey.1 The Clerk of

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1. Burns provided a copy of a receipt from prison o fficials verifying that he submitted his habeas petition for mailing on Apr il 22.

2the district court received Burns' petition on Apri l 28, 1997.

The district court granted Burns' application to pr oceed in forma pauperis on May 5, 1997, and the Clerk docket ed Burns' habeas petition as filed on that date.

In considering whether Burns' petition was timely f iled, the district court first recognized that under Duar te v. Hershberger, 947 F. Supp. 146 (D.N.J. 1996), the pe tition could not be dismissed as untimely under the one-ye ar period of limitation of 28 U.S.C. S 2244(d)(1) if t he petition was filed on or before April 23, 1997. The court al so noted Burns' assertion that he had submitted his petition to prison officials on April 22, 1997. Nonetheless, th e court concluded that Houston v. Lack, under which a pro s e prisoner's notice of appeal is considered filed at the time he submits it to prison officials for mailing, does no t apply to habeas petitions. The court thus found that Burns' petition was filed after April 23, 1997, and dismissed it as untimely under S 2244(d)(1). The court also granted Burns a certificate of appealability to appeal from this di smissal. Burns filed a timely notice of appeal.2

II.

28 U.S.C. S 2244(d) provides in relevant part:

(1) A 1-year period of limitation shall appl y to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a Sta te court. The limitation period shall run from

. . .

(A) the date on which the judgment became final

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2. The appellees assert that we lack jurisdiction t o hear this appeal because Burns' notice of appeal was untimely filed. The district court entered its order dismissing Burns' petition on Jul y 18, 1997; the district court received Burns' notice of appeal on September 2, 1997, well beyond the thirty-day period for filing a noti ce of appeal. See Fed. R. App. P. 4(a)(1). However, Burns is incarcerated and benefits from Fed. R. App. P. 4(c), under which an inmate's "notice of appeal is timely filed if it is deposited in the institution's internal ma il system on or before

the last day for filing." Because Burns delivered his n otice of appeal to prison officials for mailing on August 4, 1997, his notice of appeal was timely filed, and we have jurisdiction to hear his appeal.

3by the conclusion of direct review or the

expiration of the time for seeking such revi ew;

. . .

(2) The time during which a properly filed a pplication for State post-conviction or other collatera l review with respect to the pertinent judgment or cl aim is pending shall not be counted toward any peri od of
limitation under this subsection.

28 U.S.C. S 2244(d).

Section 2244(d) became effective on April 24, 1996, when the Antiterrorism and Effective Death Penalty Act o f 1996 was signed into law. Applying S 2244(d) as of its e ffective date would require Burns to have filed his habeas p etition before September 21, 1996, one year after his petit ion for certification was denied by the New Jersey Supreme Court, but less than five months after S 2244(d) became ef fective. Several other courts of appeals have held that appl ying S 2244(d) in this manner "would impermissibly `atta ch new legal consequences to events completed before its
enactment.' " Calderon v. United States Dist. Court for the Cent. Dist. of Cal., ___ F.3d ___, 1997 WL 671283, at *4 (9th Cir. Oct. 29, 1997), quoting Landgraf v. USI Film P rods., 511 U.S. 244, 270 (1994); see Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996), rev'd on other grounds, 117 S. Ct. 2059 (1997); see also United States v. Simmonds, 111 F.3 d 737 (10th Cir. 1997) (holding that 28 U.S.C. S 2255's o ne-year limitation cannot bar motions filed prior to April 24, 1997). These courts have fashioned a rule that "[n]o petit ion filed on or before April 23, 1997 -- one year from the da te of AEDPA's enactment -- may be dismissed for failure t o comply with [S 2244(d)(1)'s] time limit." Calderon, 1997 WL 671283, at *4. The United States Court of Appeals f or the
Second Circuit has articulated a somewhat more flex ible rule that a habeas petitioner must be afforded a "reasonable time" after April 24, 1996, tofile his petition. Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir. 1997) (finding petition filed 72 days after effective date timely under S 2244(d), even though petitioner's conviction beca me final in 1978).

We agree that applying S 2244(d)(1) to bar the fili ng of a habeas petition before April 24, 1997, where the pr isoner's

4conviction became final before April 24, 1996, woul d be

impermissibly retroactive. Even under S 2244(d)(1)' s time limitation, would-be petitioners are afforded one f ull year to prepare and file their habeas petitions, and as of April 24, 1996, have been placed on notice of this time const raint. We reject the notion that petitioners whose state c ourt proceedings concluded before April 24, 1996, should be afforded less than one year with notice. Accordingl y, we hold that habeas petitions filed on or before April 23, 1997, may not be dismissed for failure to comply with S 2244(d)(1)'s time limit.

Additionally, we note that federal inmates who wish to file motions to vacate, set aside, or correct their sent ences under 28 U.S.C. S 2255 must adhere to a one-year pe riod of limitation virtually identical to that of S 2244 (d)(1). See 28 U.S.C. S 2255. We recognize that the one-year pe riod of limitation under S 2255 is not squarely presented i n this case. However, for the orderly administration of ju stice and to provide immediate guidance to the district court s, we think it imperative that we resolve this issue now. Cf. Santana v. United States, 98 F.3d 752, 756 (3d Cir. 1996) (holding in a S 2255 case that procedural rule also applies to S 2254 petitions). Federal prisoners challenging their sentences, no less than state prisoners seeking hab eas relief, are entitled to one full year with notice t o file such motions. Thus, S 2255 motions filed on or before Ap ril 23, 1997, may not be dismissed for failure to comply wi th S 2255's one-year period of limitation.

III.

Burns, however, presented his petition to prison of ficials for mailing on April 22, 1997, just one day before the
deadline. The Clerk of the district court received the petition on April 28, and docketed the petition asf iled on May 5. The district court concluded that Burns' pet ition was filed after April 23, 1997, and dismissed it as untimely under S 2244(d)(1). The district court believed it would err by applying Houston v. Lack to the filing of Burns' habeas petition. We hold that it would not.

In Houston v. Lack, the United States Supreme Court

5held that pro se prisoners' notices of appeal arefi led at the

moment of delivery to prison authorities for mailin g to the
district court.3 The Houston Court discussed the un ique situation of pro se prisoners who cannot ensure tha t the court clerk will receive their notices of appeal wi thin thirty days. The Court explained that a prisoner "has no c hoice but to entrust the forwarding of his notice of appe al to prison authorities whom he cannot control or superv ise and who may have every incentive to delay." Id. at 278.

We are persuaded that the same concerns expressed b y the Court in Houston pertain to filing a pro se pri soner's habeas petition. We recognize that no court of appe als has held that Houston applies to the filing of a S 2254 petition for the purpose of satisfying S 2244(d)(1). Until t he enactment of S 2244(d), however, prisoners were not required to meet strict filing deadlines and couldf ile a habeas petition at any time.4 Applying Houston to t he filing of habeas petitions was simply unnecessary.

Since the enactment of S 2244(d), at least one cour t has applied Houston to a motion under S 2244(b)(3) for
authorization to file a second or successive S 2255 motion. In re Sims, 111 F.3d 45 (6th Cir. 1997). In so doin g, the court stated that "for purposes of the one-year lim itation periods established by S 2244(d)," a S 2244(b)(3) m otion is deemed filed on the date that the motion is given t o prison authorities for mailing. Id. at 47. Additionally, t he Peterson court generalized that under Houston, the timelines s of prisoners' filings is measured from the date such p apers are handed to prison authorities for mailing, and i mplied that a S 2254 petition would be considered filed wh en the

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3. In 1993, the Federal Rules of Appellate Procedur e were amended to reflect the holding of Houston. See Fed. R. App. P. 4(c) advisory
committee's note.

4. The passage of time was not completely irrelevan t prior to the enactment of S 2244(d). Under Rule 9 of the Rules G overning Section 2254 Cases and the Rules Governing Section 2255 Pro ceedings, a "delayed" petition or motion could be dismissed if the state or the government had been prejudiced in its ability to re spond due to the delay. This, however, is a far cry from the one-yea r time limit prescribed in S 2244(d).

6petition is handed to prison authorities for mailin g. See

Peterson, 107 F.3d at 93.

We have applied Houston to various filings of pro s e prisoners outside the context of habeas corpus. In an action under 42 U.S.C. S 1983, we extended Houston to apply to the filing of a motion for reconsideration under Fed. R. Civ. P. 59(e). Smith v. Evans, 853 F.2d 155 (3d Cir. 1988). Other courts have applied Houston tofind pri soners' S 1983 complaints timely. E.g., Dory v. Ryan, 999 F .2d 679, 682 (2d Cir. 1993), modified on reh'g, 25 F.3d 81 ( 2d Cir. 1994); Garvey v. Vaughn, 993 F.2d 776, 782 (11th Ci r. 1993); Lewis v. Richmond City Police Dept., 947 F.2 d 733, 736 (4th Cir. 1991). Houston has also been applied to service of discovery responses, see Faile v. Upjohn Co., 988 F.2d 985, 988 (9th Cir. 1993), and to a motion for an extension of time to correct filing deficiencies re garding in forma pauperis status, see McGore v. Wrigglesworth, 114 F.3d 601, 605 (6th Cir. 1997).

Many have expressed their concern with the pro se prisoner's lack of control over the filing of docum ents, especially as compared to the control other litigan ts maintain, e.g., Faile, 988 F.2d at 988. We share th eir concern. Indeed, as we explained above, the Supreme Court's holding in Houston was founded on such conc erns, and are present with equal force where a pro se pri soner places his habeas petition in the hands of prison authorities for mailing. Once he has done so, he is completely unable to ensure that the district court will receive his petition promptly; he remains entirely at the mercy of prison officials.

IV.

For these reasons, we hold that a pro se prisoner's habeas petition is deemed filed at the moment he de livers it to prison officials for mailing to the district court. And because we see no reason why federal prisoners shou ld not benefit from such a rule, and for the purposes of c larity and uniformity, we extend this holding to the filin g of motions under S 2255.5 Finally, because we conclude that

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5. See supra note 3.

7Houston v. Lack applies and that Burns' petition wa s timely

filed under S 2244(d)(1), we summarily reverse and remand for the district court to consider the petition. Th e petition for appointment of counsel is denied as moot.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

8